Low v. Gray

• Decision Date: 08 June 1910
• Citation: 130 S.W. 270
• Parties: LOW et al. v. GRAY.
• Court: Texas Court of Appeals

130 S.W. 270

LOW et al. v. GRAY.

Court of Civil Appeals of Texas.

June 8, 1910.

Rehearing Denied June 29, 1910.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Action by George Gray against Fred Low and others. From a judgment for plaintiff, all defendants except J. F. Liken appeal. Affirmed.

Adkins & Green, for appellants. Townsend, Ayars & Townsend and Carothers & Brown, for appellee.

NEILL, J.

This suit was brought, in the ordinary form of an action of trespass to try title, by George Gray against Fred, Louis, Earl, and Laberta Low, Jennie Hale, W. Ed. Low, Clara Low, Fannie Huff, Charles W. Huff, and F. N. Hale, and J. A. McWaid, W. A. McWaid, and J. B. Low, and also J. F. Liken, to recover an undivided one-third of 3,496 acres of land, situated in Colorado county, Tex., described in plaintiff's first amended original petition, upon which the case was tried. It alleged that all the defendants, except J. A. McWaid, W. A. McWaid, and J. B. Low, and also J. F. Liken, are the heirs of W. H. Low, deceased, through whom they claim title, and that Liken also claims an undivided one-third interest in said 3,496 acres. The defendants, who are the appellants, interposed a general demurrer, pleading the statutes of two, four, three, five, and ten years' limitation, innocent purchasers, a general denial, and not guilty. The case was tried before the court without a jury, and judgment was rendered in favor of plaintiff against defendants for one-third undivided interest in the land described in plaintiff's petition, as prayed for. From this judgment all the defendants except J. F. Liken, whose one-third interest was not affected by it, have appealed.

On October 11, 1900, Frank A. Ramsey executed a general warranty deed to W. H. Low conveying to him an undivided one-third interest in the land described in plaintiff's petition. It recites the consideration of $4,000, of which $2,500 is recited cash, and $1,770.66 in the grantee's assuming the payment of certain incumbrances on the land to that amount, with interest thereon. And on October 13, 1900, Samuel S. Liken executed to W. H. Low a general warranty deed, conveying to him an undivided one-third interest in all of said lands. This deed recites, as the consideration, a deed from the grantee to the grantor to 320 acres of land in Washington county, Colo., and the further consideration of $3,270.66 paid and secured to be paid as follows: $1,500 in cash, $1,770.66 by the grantee's assuming the payment of certain specified incumbrances on the land conveyed. W. H. Low, through these two deeds, is the common source of title. The plaintiff claims under him through an express parol trust; all the defendants except J. A. McWaid, W. A. McWaid, and J. B. Low, claim as his heirs; and each of the last-named defendants claims under a deed made to him by W. H. Low, conveying him two-thirds interest in a designated part of the land sued for. That J. F. Liken owns the remaining one-third of the land is conceded by all the parties. The heirship of such defendants as claim through W. H. Low by inheritance is not disputed. The only issues of fact are: (1) Whether there was such a parol agreement between the plaintiff and W. H. Low, and performance of it on the part of the former, at the time the deeds above mentioned were made to the latter, as to vest equitable title to an undivided one-third interest in the land described in them in the plaintiff and constitute Low his trustee under said deeds as his trustee for such interest in the lands; (2) whether the McWaids and J. B. Low, or any of them, were bona fide purchasers for value without notice of plaintiff's equitable title at the time each purchased the part of the land claimed by him; and (3) whether plaintiff's equitable title was barred by any of the statutes of limitation.

Upon all these issues the trial court found as follows: "The deeds from Frank A. Ramsey and Samuel S. Liken to W. H. Low, referred to above, were executed in accordance with an agreement between the said W. H. Low and George Gray, the plaintiff herein, that they would purchase the land for their joint and equal benefit, that each would furnish one-half of the purchase price, and that the deeds should be taken in the name of W. H. Low alone and the title to one-half of same to be held by Low for Gray. That the purpose of having the deed taken in the name of W. H. Low was that the said Gray and Low desired to also purchase another one-third in the 3,496 acres of land owned by John S. Liken; the reason being that, as the latter and plaintiff, George Gray, were enemies, it was believed...